Volume 89.1 (January 2022) 1–314

Articles

Civil Procedure as the Regulation of Externalities: Toward a New Theory of Civil Litigation
Ronen Avraham - Professor of Law, Tel Aviv University Faculty of Law; Lecturer, University of Texas at Austin School of Law.

William H.J. Hubbard - Professor of Law, The University of Chicago Law School.

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us to tie together distinct strands of scholarship on procedural design, develop a taxonomy of externalities that civil procedureaddresses, and propose (sometimes radical) reforms that would allow procedure to serve more of its goals at once.

First, we show that the literature on procedural design has unraveled into three distinct strands. The first strand centers on the interest in reducing cost and delay in litigation. The second strand centers on the interests in limiting gamesmanship between the parties and improving court accuracy in decision-making. The third strand centers on the many related interests in the positive effects of procedure
on society, such as developing legal precedent, deterring unwanted (primary) behavior, and so on.

Second, we tie together these strands of the literature by observing that each strand is focused on how procedure can address one type of externality. The first strand of the literature addresses what we call “system externalities”—the effects of actions on other cases in the same court or court system. The second strand addresses what we call “strategic externalities”—the effects of a party’s actions on opposing parties in the same case. The third strand implicates external effects on society as a whole, which we call “public-goods externalities.”

Remembering: The Constitution and Federally Funded Apartheid
Joy Milligan - Professor, the University of Virginia School of Law.

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’s Spending Clause powers. Federal spending allowed powerful national investments in areas like health, education, and housing but frequently created segregated hospitals, schools, and communities. From the New Deal onward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Early on, federal lawyers and administrators recognized the strength of those arguments but explicitly decided against halting federal involvement in Jim Crow.

Decades later, the civil rights advocates prevailed. By the 1970s, the federal courts overwhelmingly agreed that the Fifth Amendment’s Equal Protection component barred federal subsidies or support for racial discrimination. The same “noaid” principle was codified in the landmark Civil Rights Act of 1964. However, from the 1980s onward, this hard-won constitutional mandate became increasingly difficult to enforce, blocked by judicially constructed procedural obstacles. The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle.

This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again. The costs of forgetting the constitutional principle and its history are significant: Civil rights frameworks have been distorted, leaving no systemic check or means of redress for the discriminatory use of federal funds. Further, the nation’s constitutional memory and deliberations have been shortchanged, leaving us unable to reckon with the past honestly and adequately. Our polity should again debate federal constitutional responsibility for Spending Clause programs, and, in doing so, confront the nation’s obligation to repair the apartheid it once bankrolled.

Foreign Dictators in U.S. Court
Diego A. Zambrano - Associate Professor, Stanford Law School.

It’s almost impossible to sue a foreign government in U.S. courts. The Foreign Sovereign Immunities Act, the court-created “act of state” doctrine, and other common-law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships—including Russia, China, Turkey, and Venezuela—have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this Article: foreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, immune from lawsuits here.

This Article exposes that asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system. This Article offers three novel contributions. First, this Article provides the first systematic assessment of foreign dictatorships in U.S. courts. While much of the literature is siloed by area of substantive law—focusing on contexts like human rights or property
expropriations—this Article treats dictators as a transsubstantive category of litigants, worthy of special analysis. Second, this Article exposes how foreign dictators are increasingly taking advantage of U.S. courts and comity doctrines, especially as plaintiffs. In a misguided effort to promote harmonious foreign relations, courts have provided foreign dictators an array of protections and privileges, which dictators are eagerly exploiting. Finally, this Article demonstrates that there is no historical, constitutional, or statutory obligation on U.S. courts to give foreign dictators these legal protections and unfettered access to our courts. Because of that, I offer four concrete proposals to both stymie dictators’ access to U.S. courts as plaintiffs—through a proposed foreign sovereign anti-SLAPP statute—and weaken the protections that dictators enjoy as defendants. Simply stated, U.S. courts should not be instruments of foreign authoritarian oppression.

Comments

The Power of Attorneys: Addressing the Equal Protection Challenge to Merit-Based Judicial Selection
Zachary Reger - B.J. & B.A. 2017, University of Missouri; J.D. Candidate 2022, The University of Chicago Law School.

Many states use merit-based judicial selection to limit political influence on state courts. Under merit selection, an independent, nonpartisan commission screens candidates for any open judgeship, sending a slate of finalists to the governor. Because the governor may appoint only from these approved finalists, merit selection constrains the ability of political officials to stack the courts with partisan
judges.

Yet not all are convinced of merit selection’s merit. Critics of merit selection have assailed the role attorneys play in selecting some of the commission’s members. Though the details vary by state, ordinarily a minority of commissioners must be attorneys, and these attorney commissioners are elected by their fellow members of the state bar. Some argue that, by denying nonattorneys the ability to participate in these closed elections, merit selection violates the Equal Protection Clause of the Fourteenth Amendment. In particular, critics point to the vote-denial aspect of the Supreme Court’s “one person, one vote” principle, which holds that whenever a state charters an election of a public official who exercises general governmental power, all qualified voters must be allowed to participate.

This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people.